United States v. Sells Engineering, Inc.Annotate this Case
463 U.S. 418 (1983)
U.S. Supreme Court
United States v. Sells Engineering, Inc., 463 U.S. 418 (1983)
United States v. Sells Engineering, Inc.
Argued March 2, 1983
Decided June 30, 1983
463 U.S. 418
CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
After respondents, a company having contracts with the Navy and company officials, were indicted by a federal grand jury for conspiracy to defraud the United States and tax fraud, the parties reached a plea bargain under which the individual respondents pleaded guilty to a count of conspiracy to defraud the Government by obstructing an Internal Revenue Service investigation, and other counts against respondents were dismissed. Thereafter, the Government moved for disclosure of all grand jury materials to attorneys in the Justice Department's Civil Division, their paralegal and secretarial assistants, and certain Defense Department experts for use in preparing and conducting a possible civil suit against respondents under the False Claims Act. The District Court granted disclosure, concluding that Civil Division attorneys are entitled to disclosure as a matter of right under Federal Rule of Criminal Procedure 6(e)(3)(A)(i) (hereinafter (A)(i)), which authorizes disclosure of grand jury materials without a court order to "an attorney for the government for use in the performance of such attorney's duty." The court also stated that disclosure was warranted because the Government had shown particularized need for disclosure. The Court of Appeals vacated and remanded, holding (1) that Civil Division attorneys could obtain disclosure only by showing particularized need under Rule 6(e)(3)(C)(i) (hereinafter (C)(i)), which authorizes disclosure "when so directed by a court preliminarily to or in connection with a judicial proceeding," and (2) that the District Court had not applied a correct standard of particularized need.
1. Attorneys in the Civil Division of the Justice Department and their assistants and staff may not obtain automatic (A)(i) disclosure of grand jury materials for use in a civil suit, but must instead seek a (C)(i) court order for access to such materials. Pp. 463 U. S. 427-442.
(a) The automatic disclosure authorized by (A)(i) is limited to those attorneys who conduct the criminal matters to which the grand jury materials pertain. Rule 6(e) was not intended to grant free access to grand jury materials to Government attorneys other than prosecutors, who
perform a special role in assisting the grand jury in its functions and who must know what transpires before the grand jury in order to perform their own prosecutorial duties. Allowing automatic disclosure to nonprosecutors for civil use would increase the risk of inadvertent or illegal release of grand jury materials to others, and render considerably more concrete the threat to the willingness of witnesses to come forward and testify fully and candidly before the grand jury; would pose a significant threat to the integrity of the grand jury itself by tempting prosecutors to manipulate the grand jury's powerful investigative tools to improperly elicit evidence for use in a civil case; and would threaten to subvert the limitations under federal laws applied outside the grand jury context on the Government's powers of discovery and investigation. Pp. 463 U. S. 427-435.
(b) The fact that, when subparagraph 6(e)(3)(A)(ii) was added by Congress in 1977 to allow access to grand jury materials by nonattorneys assisting Government attorneys, (A)(ii) was limited to assisting the attorney in the "performance of [his] duty to enforce federal criminal law" does not establish that Congress intended to place the limitation to criminal matters on (A)(ii) disclosure but not on (A)(i) disclosure. The legislative history shows instead that Congress merely made explicit what it believed to be already implicit in (A)(i)'s language (which has been in the Rule since its inception in 1946). Congress' concerns that grand jury materials not be disclosed for civil use without a court order, and that statutory limits on civil discovery not be subverted, apply to disclosure for civil use by attorneys within the Justice Department as fully as to similar use by other Government agencies. Pp. 463 U. S. 435-442.
2. A strong showing of particularized need for grand jury materials must be made before any (C)(i) disclosure will be permitted by court order. The party seeking disclosure must show that the material sought is needed to avoid a possible injustice in another judicial proceeding, that the need for disclosure is greater than the need for continued secrecy, and that the request is structured to cover only material so needed. Douglas Oil Co. v. Petrol Stops Northwest,441 U. S. 211. This standard governs disclosure to Government officials as well as to private parties, but is flexible and accommodates any relevant considerations, peculiar to Government movants, that weigh for or against disclosure in a given case. Here, the District Court's explanation of its finding of particularized need amounted to little more than its statement that the grand jury materials were rationally related to the civil fraud suit to be brought by the Civil Division, and the Court of Appeals correctly held that this was insufficient, and remanded for reconsideration under the proper legal standard. Pp. 463 U. S. 442-446.
642 F.2d 1184, affirmed.
BRENNAN, J., delivered the opinion of the Court, in which WHITE, MARSHALL, BLACKMUN, and STEVENS, JJ., joined. BURGER, C.J., filed a dissenting opinion, in which POWELL, REHNQUIST, and O'CONNOR, JJ., joined, post, p. 463 U. S. 446.
JUSTICE BRENNAN delivered the opinion of the Court.
The question in this case is under what conditions attorneys for the Civil Division of the Justice Department, their paralegal and secretarial staff, and all other necessary assistants, may obtain access to grand jury materials, compiled with the assistance and knowledge of other Justice Department attorneys, for the purpose of preparing and pursuing a civil suit. We hold that such access is permissible only when the Government moves for court-ordered disclosure under Federal Rule of Criminal Procedure 6(e)(3)(C)(i) and makes the showing of particularized need required by that Rule.
Respondents Peter A. Sells and Fred R. Witte were officers of respondent Sells Engineering, Inc. That company
had contracts with the United States Navy to produce airborne electronic devices designed to interfere with enemy radar systems. In 1974, a Special Agent of the Internal Revenue Service began a combined criminal and civil administrative investigation of respondents. The Agent issued administrative summonses for certain corporate records of Sells Engineering. When the corporation refused to comply, the Agent obtained a District Court order enforcing the summonses. Enforcement was stayed, however, pending appeal.
While the enforcement case was pending in the Court of Appeals, a federal grand jury was convened to investigate charges of criminal fraud on the Navy and of evasion of federal income taxes. The grand jury subpoenaed, and respondents produced, many of the same materials that were the subject of the IRS administrative summonses. [Footnote 1] The grand jury indicted all three respondents on two counts of conspiracy to defraud the United States [Footnote 2] and nine counts of tax fraud. [Footnote 3] Respondents moved to dismiss the indictment, alleging grand jury misuse for civil purposes. Before the motion was decided, however, the parties reached a plea bargain. The individual respondents each pleaded guilty to one count of conspiracy to defraud the Government by obstructing an IRS investigation. All other counts were dismissed, and respondents withdrew their charges of grand jury misuse.
Thereafter, the Government moved for disclosure of all grand jury materials to attorneys in the Justice Department's Civil Division, their paralegal and secretarial assistants, and certain Defense Department experts, for use in preparing
and conducting a possible civil suit against respondents under the False Claims Act, 31 U.S.C. § 231 et seq. [Footnote 4] Respondents opposed the disclosure, renewing their allegations of grand jury misuse. The District Court granted the requested disclosure, concluding that attorneys in the Civil Division are entitled to disclosure as a matter of right under Rule 6(e)(3)(A)(i). The court also stated that disclosure to Civil Division attorneys and their nonattorney assistants was warranted because the Government had shown particularized need for disclosure. [Footnote 5] The Court of Appeals vacated and remanded, holding that Civil Division attorneys could obtain disclosure only by showing particularized need under Rule 6(e)(3)(C)(i), and that the District Court had not applied a correct standard of particularized need. In re Grand Jury Investigation No. 78-18 (Sells, Inc.), 642 F.2d 1184 (CA9 1981). [Footnote 6] We granted certiorari, 456 U.S. 960 (1982). We now affirm.
The grand jury has always occupied a high place as an instrument of justice in our system of criminal law -- so much so that it is enshrined in the Constitution. Pittsburgh Plate Glass Co. v. United States,360 U. S. 395, 360 U. S. 399 (1959); Costello v. United States,350 U. S. 359, 350 U. S. 361-362 (1956). It serves the
"dual function of determining if there is probable cause to believe that a crime has been committed and of protecting citizens against unfounded criminal prosecutions."
Branzburg v. Hayes,408 U. S. 665, 408 U. S. 686-687 (1972) (footnote omitted). It has always been extended extraordinary powers of investigation and great responsibility for directing its own efforts:
"Traditionally the grand jury has been accorded wide latitude to inquire into violations of criminal law. No judge presides to monitor its proceedings. It deliberates in secret, and may determine alone the course of its inquiry. The grand jury may compel the production of evidence or the testimony of witnesses as it considers appropriate, and its operation generally is unrestrained by the technical procedural and evidentiary rules governing the conduct of criminal trials."
"It is a grand inquest, a body with powers of investigation and inquisition, the scope of whose inquiries is not to be limited narrowly by questions of propriety or forecasts of the probable result of the investigation, or by doubts whether any particular individual will be found properly subject to an accusation of crime."
These broad powers are necessary to permit the grand jury to carry out both parts of its dual function. Without thorough and effective investigation, the grand jury would be unable either to ferret out crimes deserving of prosecution or to screen out charges not warranting prosecution. Branzburg, supra, at 408 U. S. 688; Calandra, supra, at 414 U. S. 343. See also United States v. Dionisio,410 U. S. 1, 410 U. S. 12-13 (1973); United States v. Johnson,319 U. S. 503, 319 U. S. 510-512 (1943); Hale v. Henkel,201 U. S. 43, 201 U. S. 59-66 (1906).
The same concern for the grand jury's dual function underlies the "long-established policy that maintains the secrecy of the grand jury proceedings in the federal courts." United States v. Procter & Gamble Co.,356 U. S. 677, 356 U. S. 681 (1958) (footnote omitted).
"We consistently have recognized that the proper functioning of our grand jury system depends upon the secrecy of grand jury proceedings. In particular, we have noted several distinct interests served by safeguarding the confidentiality of grand jury proceedings. First, if preindictment proceedings were made public, many prospective witnesses would be hesitant to come forward voluntarily, knowing that those against whom they testify would be aware of that testimony. Moreover, witnesses who appeared before the grand jury would be less likely to testify fully and frankly, as they would be open to retribution as well as to inducements. There also would be the risk that those about to be indicted would flee, or would try to influence individual grand jurors to vote against indictment. Finally, by preserving the secrecy of the proceedings, we assure that persons who are accused but exonerated by the grand jury will not be held up to public ridicule."
Douglas Oil Co. v. Petrol Stops Northwest,441 U. S. 211, 441 U. S. 218-219 (1979) (footnotes and citation omitted). Grand jury secrecy, then, is "as important for the protection of the innocent as for the pursuit of the guilty." Johnson,
supra, at 319 U. S. 513. Both Congress and this Court have consistently stood ready to defend it against unwarranted intrusion. In the absence of a clear indication in a statute or Rule, we must always be reluctant to conclude that a breach of this secrecy has been authorized. See Illinois v. Abbott & Associates, Inc.,460 U. S. 557, 460 U. S. 572-573 (1983).
Rule 6(e) of the Federal Rules of Criminal Procedure codifies the traditional rule of grand jury secrecy. Paragraph 6(e)(2) provides that grand jurors, Government attorneys and their assistants, and other personnel attached to the grand jury are forbidden to disclose matters occurring before the grand jury. Witnesses are not under the prohibition unless they also happen to fit into one of the enumerated classes. Paragraph 6(e)(3) sets forth four exceptions to this nondisclosure rule. [Footnote 7]
Subparagraph 6(e)(3)(A) contains two authorizations for disclosure as a matter of course, without any court order. First, under subparagraph 6(e)(3)(A)(i), disclosure may be made without a court order to "an attorney for the government for use in the performance of such attorney's duty" (referred to hereinafter as "(A)(i) disclosure"). "Attorney for the government" is defined in Rule 54(c) in such broad terms as potentially to include virtually every attorney in the Department of Justice. [Footnote 8] Second, under subparagraph 6(e)(3)(A)(ii), grand jury materials may likewise be provided to "government personnel . . . [who] assist an attorney for the government in the performance of such attorney's duty to enforce federal criminal law" ("(A)(ii) disclosure"). Subparagraph 6(e)(3)(B) further regulates (A)(ii) disclosure,
forbidding use of grand jury materials by "government personnel" for any purpose other than assisting an attorney for the Government in his enforcement of criminal law, and requiring that the names of such personnel be provided to the district court.
Subparagraph 6(e)(3)(C) also authorizes courts to order disclosure. Under subparagraph 6(e)(3)(C)(i), a court may order disclosure "preliminarily to or in connection with a judicial proceeding" (a "(C)(i) order"). [Footnote 9] Under subparagraph 6(e)(3)(C)(ii), a court may order disclosure under certain conditions at the request of a defendant. See alson 7, supra.
The main issue in this case is whether attorneys in the Justice Department may obtain automatic (A)(i) disclosure of grand jury materials for use in a civil suit, or whether they must seek a (C)(i) court order for access. If a (C)(i) order is necessary, we must address the dependent question of what standards should govern issuance of the order.
The Government contends that all attorneys in the Justice Department qualify for automatic disclosure of grand jury materials under (A)(i), regardless of the nature of the litigation in which they intend to use the materials. We hold that (A)(i) disclosure is limited to use by those attorneys who conduct the criminal matters to which the materials pertain. This conclusion is mandated by the general purposes and policies of grand jury secrecy, by the limited policy reasons why Government attorneys are granted access to grand jury materials for criminal use, and by the legislative history of Rule 6(e).
The Government correctly contends that attorneys for the Civil Division of the Justice Department are within the class of "attorneys for the government" to whom (A)(i) allows disclosure
without a court order.Rule 54(c) defines the phrase expansively, to include "authorized assistant[s] of the Attorney General"; 28 U.S.C. § 515(a) provides that the Attorney General may direct any attorney employed by the Department to conduct "any kind of legal proceeding, civil or criminal, including grand jury proceedings. . . ." See also § 518(b). In short, as far as Rules 6 and 54 are concerned, it is immaterial that certain attorneys happen to be assigned to a unit called the Civil Division, or that their usual duties involve only civil cases. If, for example, the Attorney General (for whatever reason) were to detail a Civil Division attorney to conduct a criminal grand jury investigation, nothing in Rule 6 would prevent that attorney from doing so; he need not secure a transfer out of the Civil Division. [Footnote 10]
It does not follow, however, that any Justice Department attorney is free to rummage through the records of any grand jury in the country, simply by right of office. Disclosure under (A)(i) is permitted only "in the performance of such attorney's duty." The heart of the primary issue in this case is whether performance of duty, within the meaning of (A)(i), includes preparation and litigation of a civil suit by a Justice Department attorney who had no part in conducting the related criminal prosecution.
Given the strong historic policy of preserving grand jury secrecy, one might wonder why Government attorneys are given any automatic access at all. The draftsmen of the original Rule 6 provided the answer:
"Government attorneys are entitled to disclosure of grand jury proceedings, other than the deliberations and the votes of the jurors, inasmuch as they may be present in the grand jury room during the presentation of evidence. The rule continues this practice."
Committee's Notes on Federal Rule of Criminal Procedure 6(e), 18 U.S.C.App. p. 1411. This is potent evidence that Rule 6(e) was never intended to grant free access to grand jury materials to attorneys not working on the criminal matters to which the materials pertain. The Advisory Committee's explanation strongly suggests that automatic access to grand jury materials is available only to those attorneys for the Government who would be entitled to appear before the grand jury. [Footnote 11] But Government attorneys are allowed into grand jury rooms, not for the general and multifarious purposes of the Department of Justice, but because both the grand jury's functions and their own prosecutorial duties require it. [Footnote 12] As the Advisory Committee
suggested, the same reasoning applies to disclosure of grand jury materials outside the grand jury room.
The purpose of the grand jury requires that it remain free, within constitutional and statutory limits, to operate "independently of either prosecuting attorney or judge." Stirone v. United States,361 U. S. 212, 361 U. S. 218 (1960) (footnote omitted). Nevertheless, a modern grand jury would be much less effective without the assistance of the prosecutor's office and the investigative resources it commands. The prosecutor ordinarily brings matters to the attention of the grand jury and gathers the evidence required for the jury's consideration. Although the grand jury may itself decide to investigate a matter or to seek certain evidence, it depends largely on the prosecutor's office to secure the evidence or witnesses it requires. [Footnote 13] The prosecutor also advises the lay jury on the applicable law. The prosecutor in turn needs to know what transpires before the grand jury in order to perform his own duty properly. If he considers that the law and the admissible evidence will not support a conviction, he can be expected to advise the grand jury not to indict. He must also examine indictments, and the basis for their issuance, to determine whether it is in the interests of justice to proceed with prosecution. [Footnote 14]
None of these considerations, however, provides any support for breaching grand jury secrecy in favor of Government attorneys other than prosecutors -- either by allowing them into the grand jury room or by granting them uncontrolled access to grand jury materials. An attorney with only civil duties lacks both the prosecutor's special role in supporting the grand jury and the prosecutor's own crucial need to know what occurs before the grand jury. [Footnote 15]
Of course, it would be of substantial help to a Justice Department civil attorney if he had free access to a storehouse of evidence compiled by a grand jury; but that is of a different order from the prosecutor's need for access. The civil lawyer's need is ordinarily nothing more than a matter of saving time and expense. The same argument could be made for access on behalf of any lawyer in another Government agency, or indeed, in private practice. We have consistently rejected the argument that such savings can justify a breach of grand jury secrecy. E.g., Procter & Gamble, 356 U.S. at 356 U. S. 682-683; Smith v. United States,423 U. S. 1303, 423 U. S. 1304 (1975) (Douglas, J., in chambers); see also Abbott, 460 U.S. at 460 U. S. 565-573. In most cases, the same evidence that could be obtained from the grand jury will be available through ordinary discovery or other routine avenues of investigation. If, in a particular case, ordinary discovery is insufficient for some reason, the Government may request disclosure under a (C)(i) court order. See463 U. S. infra.
Not only is disclosure for civil use unjustified by the considerations supporting prosecutorial access, but also it threatens to do affirmative mischief. The problem is threefold.
First, disclosure to Government bodies raises much the same concerns that underlie the rule of secrecy in other contexts. Not only does disclosure increase the number of persons to whom the information is available (thereby increasing the risk of inadvertent or illegal release to others), [Footnote 16] but also it renders considerably more concrete the threat to the willingness of witnesses to come forward and to testify fully and candidly. If a witness knows or fears that his testimony before the grand jury will be routinely available for use in governmental civil litigation or administrative action, he may well be less willing to speak for fear that he will get himself into trouble in some other forum. Cf. Pillsbury Co. v. Conboy,459 U. S. 248, 459 U. S. 263, n. 23 (1983).
Second, because the Government takes an active part in the activities of the grand jury, disclosure to Government attorneys for civil use poses a significant threat to the integrity of the grand jury itself. If prosecutors in a given case knew that their colleagues would be free to use the materials generated by the grand jury for a civil case, they might be tempted to manipulate the grand jury's powerful investigative tools to root out additional evidence useful in the civil suit, or even to start or continue a grand jury inquiry where no criminal prosecution seemed likely. Any such use of grand jury proceedings to elicit evidence for use in a civil case is improper per se.Procter & Gamble, supra, at 356 U. S. 683-684. We do not mean to impugn the professional characters of Justice Department lawyers in general; nor do we express any view on the allegations of misuse that have been made in this case, seen 36, infra. Our concern is based less on any belief that grand jury misuse is in fact widespread than on our concern that, if and when it does occur, it would often be very difficult to detect and prove. Moreover, as the legislative history discussed infra,463 U. S. shows, our concern over possible misappropriation of the grand jury itself was
shared by Congress when it enacted the present version of Rule 6(e). Such a potential for misuse should not be allowed absent a clear mandate in the law.
Third, use of grand jury materials by Government agencies in civil or administrative settings threatens to subvert the limitations applied outside the grand jury context on the Government's powers of discovery and investigation. While there are some limits on the investigative powers of the grand jury, [Footnote 17] there are few if any other forums in which a governmental body has such relatively unregulated power to compel other persons to divulge information or produce evidence. Other agencies, both within and without the Justice Department, operate under specific and detailed statutes, rules, or regulations conferring only limited authority to require citizens to testify or produce evidence. Some agencies have been granted special statutory powers to obtain information and require testimony in pursuance of their duties. Others (including the Civil Division [Footnote 18]) are relegated to the usual course of discovery under the Federal Rules of Civil Procedure. In either case, the limitations imposed on investigation and discovery exist for sound reasons -- ranging from fundamental fairness to concern about burdensomeness and intrusiveness. If Government litigators or investigators in civil matters enjoyed unlimited access to grand jury material, though, there would be little reason for them to resort to their usual, more limited avenues of investigation. To allow
these agencies to circumvent their usual methods of discovery would not only subvert the limitations and procedural requirements built into those methods, but also would grant to the Government a virtual ex parte form of discovery, from which its civil litigation opponents are excluded unless they make a strong showing of particularized need. In civil litigation as in criminal, "it is rarely justifiable for the [Government] to have exclusive access to a storehouse of relevant fact." Dennis v. United States,384 U. S. 855, 384 U. S. 873 (1966) (footnote omitted). We are reluctant to conclude that the draftsmen of Rule 6 intended so remarkable a result. [Footnote 19]
In short, if grand juries are to be granted extraordinary powers of investigation because of the difficulty and importance of their task, the use of those powers ought to be limited as far as reasonably possible to the accomplishment of
the task. [Footnote 20] The policies of Rule 6 require that any disclosure to attorneys other than prosecutors be judicially supervised, rather than automatic.
The Government argues that its reading of Rule 6 is compelled by a textual comparison of subparagraph 6(e)(3)(A)(i) with subparagraph 6(e)(3)(A)(ii). It points out that the former restricts a Government attorney's use of grand jury materials to "the performance of such attorney's duty," while the latter refers more specifically to "performance of such attorney's duty to enforce federal criminal law" (emphasis added). The inclusion in (A)(ii) of an express limitation to criminal matters, and the absence of that limitation in the otherwise similar language of (A)(i), the Government argues, show that Congress intended to place the limitation to criminal matters on (A)(ii) disclosure, but not on (A)(i) disclosure. The argument is admittedly a plausible one. If we had nothing more to go on than the bare text of the Rule, and if the subject matter at hand were something less sensitive than grand jury secrecy, we might well adopt that reasoning. The argument is not so compelling, nor the language so plain, however, as to overcome the strong arguments to the contrary drawn both from policy, supra,463 U. S. and from legislative history.
It is material in this connection that the two subparagraphs are not of contemporaneous origin. The present (A)(i) language has been in the Rule since its inception in 1946; the (A)(ii) provision was added by Congress in 1977. The Government's argument, at base, is that, when Congress added the (A)(ii) provision containing an express limitation to criminal use, but did not add a similar limitation to (A)(i), it must have intended that no criminal use limitation be applied to (A)(i) disclosure. The legislative history, although of less than perfect clarity, leads to the contrary conclusion. It appears
instead that, when Congress included the criminal use limitation in the new (A)(ii), it was merely making explicit what it believed to be already implicit in the existing (A)(i) language.
Rule 6(e), as it stood from 1946 to 1977, contained no provision for access to grand jury materials by nonattorneys [Footnote 21] assisting Government attorneys. The only provision for automatic access was one substantially the same as the language presently in (A)(i): "Disclosure . . . may be made to . . . the attorney[s] for the government for use in the performance of [their] dut[ies]." This became something of a problem in practice, because Justice Department attorneys found that they often needed active assistance from outside personnel -- not only investigators from the Federal Bureau of Investigation, IRS, and other law enforcement agencies, but also accountants, handwriting experts, and other persons with special skills. Hence, despite the seemingly clear prohibition of the Rule, it became common in some Districts for nonattorneys to be shown grand jury materials. This practice sparked some controversy and litigation. [Footnote 22]
Accordingly, when in 1976 this Court transmitted to the Congress several proposed amendments to the Federal Rules of Criminal Procedure, 425 U.S. 1159, a proposal was included to add one sentence to Rule 6(e), immediately
following the provision for disclosure to attorneys for the Government:
"For purposes of [Rule 6(e)], 'attorneys for the government' includes those enumerated in Rule 54(c); it also includes such other government personnel as are necessary to assist the attorneys for the government in the performance of their duties."
425 U.S. at 1161. The accompanying Notes of the Advisory Committee on Rules, 18 U.S.C.App. p. 1024 (1976 ed., Supp. V), explained that the amendment was
"designed to facilitate an increasing need, on the part of government attorneys, to make use of outside expertise in complex litigation."
Ibid. The Committee noted, however, that under its proposal, disclosure to nonattorneys would be "subject to the qualification that the matters disclosed be used only for the purposes of the grand jury investigation." Id. at 1025 (emphasis added). Yet there was no express language in the proposed Rule clearly imposing this criminal use limitation; the only limitation on use of grand jury materials was the double reference to "the performance of [Government attorneys'] duties." It appears, then, that the Advisory Committee took that phrase to mean that use of grand jury materials was limited to criminal matters, absent a court order allowing civil use -- a construction that would apply equally to Justice Department attorneys and their nonattorney assistants.
The proposed amendment to Rule 6(e) met a mixed reception in Congress. Congress first acted to postpone the effective date of the amendment to Rule 6(e) so that it might study the proposal. The House, after hearings, voted to disapprove the amendment. Members of the responsible Subcommittee stated that they were in general sympathy with the purpose of the proposal, [Footnote 23] but that they were concerned that it was not sufficiently clear to protect adequately
against use of grand jury materials for improper purposes by Government personnel. They were unable to agree on a substitute draft. [Footnote 24]
The Senate Judiciary Committee was more hospitable to the original proposal. After consultation with House Members, [Footnote 25] however, the Committee undertook to redraft Rule 6(e) to accommodate both the purpose of the proposed amendment and the concerns of the House. [Footnote 26] The result was Rule 6(e) in substantially its present form, passed by both Houses without significant opposition. [Footnote 27]
Congressional criticism of the proposed amendment focused on two problems: disclosure of grand jury materials to agencies outside the Department of Justice, and use of grand jury materials for non-grand-jury purposes. The two were closely related, however; the primary objection to granting access to employees of outside agencies, such as the IRS, was a concern that they would use the information to pursue civil investigations or unrelated criminal matters in derogation of the limitations on their usual avenues of investigation. [Footnote 28] Little attention was paid to the prospect that other attorneys within the Justice Department, as much as other agencies,
might use grand jury materials for civil purposes -- presumably because the proposed amendment did not purport to alter the text governing access by Justice Department attorneys in any way. The only participant to address that aspect of the problem directly was Acting Deputy Attorney General Richard Thornburgh, testifying on behalf of the Justice Department at the House Hearings. Thornburgh acknowledged that it would be a bad idea to allow agency personnel to use grand jury materials for civil purposes, but he contended that neither the proposal as drafted nor current practice would allow such use. Materials, he said, should be available to "every legitimate member of [the] team" conducting the criminal investigation, including "the assistant U.S. attorney who is probably conducting the investigation." [Footnote 29] He continued:
"Now, when you begin to move beyond the parameters of that particular investigation, we get to the point that you and I both have some trouble with. The cleanest example I can think of where a 6(e) order [i.e., a court order under what is now (C)(i)] is clearly required is where a criminal fraud investigation before a grand jury fails to produce enough legally admissible evidence to prove beyond a reasonable doubt that criminal fraud ensued."
"It would be the practice of the Department at that time to seek a 6(e) order from the court in order that that evidence could be made available for whatever civil consequences might ensue."
"If there were fraud against the Government[,] for example, there would be a civil right of the Government to recover penalties with respect to the fraud that took place. [Footnote 30] "
The rest of the legislative history is consistent with this view that no disclosure of grand jury materials for civil use should be permitted without a court order. [Footnote 31] Congress' expressions of concern about civil use of grand jury materials did not distinguish in principle between such use by outside agencies and by the Department; rather, the key distinction was between disclosure for criminal use, as to which access should be automatic, and for civil use, as to which a court order should be required. [Footnote 32] The Senate Report for example, explained its redraft thus:
"The Rule as redrafted is designed to accommodate the belief on the one hand that Federal prosecutors should be able, without the time-consuming requirement of prior judicial interposition, to make such disclosures of grand jury information to other government personnel as they deem necessary to facilitate the performance of their duties relating to criminal law enforcement. On the other hand, the Rule seeks to allay the concerns of those who fear that such prosecutorial power will lead to misuse of the grand jury to enforce noncriminal Federal laws by (1) providing a clear prohibition, subject to the penalty of contempt and (2) requiring that a court order under paragraph (C) be obtained to authorize such a disclosure. There is, however, no intent to preclude the use of grand-jury-developed evidence for civil law enforcement purposes. On the contrary, there is no reason why such use is improper, assuming that the grand jury was utilized for the legitimate purpose of a criminal investigation. Accordingly, the Committee believes and intends that the basis for a court's refusal to issue an order under paragraph (C) to enable the government to disclose grand jury information in a noncriminal proceeding should be no more restrictive than is the case today under prevailing court decisions."
S.Rep. No. 95354, p. 8 (1977) (footnote omitted). This paragraph reflects the distinction the Senate Committee had in mind: "Federal prosecutors" are given a free hand concerning
use of grand jury materials, at least pursuant to their "duties relating to criminal law enforcement"; but disclosure of "grand-jury-developed evidence for civil law enforcement purposes" requires a (C)(i) court order. [Footnote 33]
We conclude, then, that Congress did not intend that "attorneys for the government" should be permitted free civil use of grand jury materials. Congress was strongly concerned with assuring that prosecutors would not be free to turn over grand jury materials to others in the Government for civil uses without court supervision, and that statutory limits on civil discovery not be subverted -- concerns that apply to civil use by attorneys within the Justice Department as fully as to similar use by persons in other Government agencies. Both the Advisory Committee Notes and the testimony of the Justice Department's own representative suggested that, even under the old Rule, such disclosure for civil use would not have been permissible; indeed, the latter gave a hypothetical illustration closely similar to this very case. The express addition of a "criminal use" limitation in (A)(ii) appears to have been prompted by an abundance of caution, owing to Congress' special concern that nonattorneys were the ones most likely to pose a danger of unauthorized use.
Since we conclude that the Government must obtain a (C)(i) court order to secure the disclosure it seeks in this case, [Footnote 34] we must consider what standard should govern the issuance of such an order.
Rule 6(e)(3)(C)(i) simply authorizes a court to order disclosure "preliminarily to or in connection with a judicial proceeding." Neither the text of the Rule nor the accompanying
commentary describes any substantive standard governing issuance of such orders. We have consistently construed the Rule, however, to require a strong showing of particularized need for grand jury materials before any disclosure will be permitted. Abbott, 460 U.S. at 460 U. S. 566-567; Douglas Oil, 441 U.S. at 441 U. S. 217-224; Dennis, 384 U.S. at 384 U. S. 869-870; Pittsburgh Plate Glass Co., 360 U.S. at 360 U. S. 398-401; Procter & Gamble, 356 U.S. at 356 U. S. 681-683. We described the standard in detail in Douglas Oil:
"Parties seeking grand jury transcripts under Rule 6(e) must show that the material they seek is needed to avoid a possible injustice in another judicial proceeding, that the need for disclosure is greater than the need for continued secrecy, and that their request is structured to cover only material so needed. . . ."
"It is clear from Procter & Gamble and Dennis that disclosure is appropriate only in those cases where the need for it outweighs the public interest in secrecy, and that the burden of demonstrating this balance rests upon the private party seeking disclosure. It is equally clear that as the considerations justifying secrecy become less relevant, a party asserting a need for grand jury transcripts will have a lesser burden in showing justification. In sum, . . . the court's duty in a case of this kind is to weigh carefully the competing interests in light of the relevant circumstances and the standards announced by this Court. And if disclosure is ordered, the court may include protective limitations on the use of the disclosed material. . . ."
441 U.S. at 441 U. S. 222-223 (citations omitted).
The Government points out that Douglas Oil and its forerunners all involved private parties seeking access to grand jury materials. It contends that the Douglas Oil standard ought not be applied when Government officials seek access "in furtherance of their responsibility to protect the public weal." Brief for United States 43. Earlier this Term,
however, we rejected a similar argument in Abbott, supra. At issue there was an antitrust statute requiring the United States Attorney General to turn over to state attorneys general certain investigative files and materials, "to the extent permitted by law." 15 U.S.C. § 15f(b). We assumed that grand jury records are among the materials to be disclosed under the statute, 460 U.S. at 460 U. S. 566, n. 10. We held nevertheless that the particularized need standard applies to disclosure to state attorneys general, and that Congress did not intend to legislate to the contrary when it enacted the statute in question. Id. at 460 U. S. 566-568, and nn. 14-16.
Our conclusion that Douglas Oil governs disclosure to public parties as well as private ones is bolstered by the legislative history of the 1977 amendment of Rule 6(e), supra,463 U. S. That amendment was not directed at the provision for court-ordered disclosure (now (C)(i)), which remained textually unchanged. The Senate Committee that drafted the present Rule noted the importance of that provision, however, pointing out that it would continue to govern disclosure to Government parties for civil use under prevailing court interpretations. [Footnote 35] Moreover, if we were to agree with the Government that disclosure is permissible if the grand jury materials are "relevant to matters within the duties of the attorneys for the government," Brief for United States 13, a (C)(i) court order would be a virtual rubberstamp for the Government's assertion that it desires disclosure. Thus, under the Government's argument, it would get under subparagraph (C)(i) precisely what Congress in 1977 intended to deny it under subparagraphs (A) and (B) -- unlimited and unregulated access to grand jury materials for civil use.
The Government further argues that
"disclosure of grand jury materials to government attorneys typically implicates
few, if any, of the concerns that underlie the policy of grand jury secrecy."
Brief for United States 45. The contention is overstated, see supra at 463 U. S. 431-434, but it has some validity. Nothing in Douglas Oil, however, requires a district court to pretend that there are no differences between governmental bodies and private parties. The Douglas Oil standard is a highly flexible one, adaptable to different circumstances and sensitive to the fact that the requirements of secrecy are greater in some situations than in others. Hence, although Abbott and the legislative history foreclose any special dispensation from the Douglas Oil standard for Government agencies, the standard itself accommodates any relevant considerations, peculiar to Government movants, that weigh for or against disclosure in a given case. For example, a district court might reasonably consider that disclosure to Justice Department attorneys poses less risk of further leakage or improper use than would disclosure to private parties or the general public. Similarly, we are informed that it is the usual policy of the Justice Department not to seek civil use of grand jury materials until the criminal aspect of the matter is closed. Cf. Douglas Oil, supra, at 441 U. S. 222-223. And
"under the particularized-need standard, the district court may weigh the public interest, if any, served by disclosure to a governmental body. . . ."
Abbott, supra, at 460 U. S. 567-568, n. 15. On the other hand, for example, in weighing the need for disclosure, the court could take into account any alternative discovery tools available by statute or regulation to the agency seeking disclosure.
In this case, the District Court asserted that it had found particularized need for disclosure, but its explanation of that conclusion amounted to little more than its statement that the grand jury materials sought are rationally related to the civil fraud suit to be brought by the Civil Division. App. to Pet. for Cert. 22a-23a. The Court of Appeals correctly held that this was insufficient under Douglas Oil and remanded
for reconsideration under the proper legal standard. 642 F.2d at 1190-1192. [Footnote 36]
The Court of Appeals correctly held that disclosure to Government attorneys and their assistants for use in a civil suit is permissible only with a court order under Rule 6(e)(3)(C)(i), and that the District Court did not apply correctly the particularized need standard for issuance of such an order. Accordingly, the judgment of the Court of Appeals is
The Court of Appeals, upon learning this, remanded the summons enforcement action for reconsideration. The Government did not pursue the matter further, and the suit was dismissed for want of prosecution.
18 U.S.C. § 371.
26 U.S.C. § 7206(2).
Although the Government has always contended that the Civil Division attorneys are entitled to disclosure without any court order, the Government chose to request permission for disclosure from the District Court. It stated that it thought no order necessary, but requested an order in the alternative. Record 519-522; see Tr. of Oral Arg. 5-9.
The District Court found it unnecessary to pass on the allegations of grand jury misuse, but it stated without elaboration that had it considered the issue it would have found no such misuse. App. to Pet. for Cert. 24a.
The District Court refused to stay disclosure. A single Circuit Judge did issue an interim stay, but a two-judge panel vacated it and refused a further stay. Hence, the Civil Division attorneys and their assistants enjoyed access to the grand jury materials for more than two years while this case was pending in the Court of Appeals. During this time, the Government filed its False Claims Act suit against respondents. The Civil Division has been denied access since the Court of Appeals issued its mandate.
The Government argued in the Court of Appeals that the case was moot because the disclosure sought to be prevented had already occurred. The Court of Appeals correctly rejected the contention:
"The controversy here is still a live one. By its terms, the disclosure order grants access to all attorneys for the Civil Division, their paralegal and secretarial staff, and all other necessary assistants. Each day this order remains effective, the veil of secrecy is lifted higher by disclosure to additional personnel and by the continued access of those to whom the materials have already been disclosed. We cannot restore the secrecy that has already been lost, but we can grant partial relief by preventing further disclosure."
In re Grand Jury Investigation No. 78-184 (Sell, Inc.), 642 F.2d at 1187-1188.
Rules 6(e)(2) and (3), as presently in force, provide as follows:
"(e) Recording and Disclosure of Proceedings"
"* * * *"
"(2) General Rule of Secrecy. -- A grand juror, an interpreter, a stenographer, an operator of a recording device, a typist who transcribes recorded testimony, an attorney for the government, or any person to whom disclosure is made under paragraph (3)(A)(ii) of this subdivision shall not disclose matters occurring before the grand jury, except as otherwise provided for in these rules. No obligation of secrecy may be imposed on any person except in accordance with this rule. A knowing violation of Rule 6 may be punished as a contempt of court."
"(A) Disclosure otherwise prohibited by this rule of matters occurring before the grand jury, other than its deliberations and the vote of any grand juror, may be made to -- "
"(i) an attorney for the government for use in the performance of such attorney's duty; and"
"(ii) such government personnel as are deemed necessary by an attorney for the government to assist an attorney for the government in the performance of such attorney's duty to enforce federal criminal law."
"(B) Any person to whom matters are disclosed under subparagraph (A)(ii) of this paragraph shall not utilize that grand jury material for any purpose other than assisting the attorney for the government in the performance of such attorney's duty to enforce federal criminal law. An attorney for the government shall promptly provide the district court, before which was impaneled the grand jury whose material has been so disclosed, with the names of the persons to whom such disclosure has been made."
"(C) Disclosure otherwise prohibited by this rule of matters occurring before the grand jury may also be made -- "
"(i) when so directed by a court preliminarily to or in connection with a judicial proceeding; or"
"(ii) when permitted by a court at the request of the defendant, upon a showing that grounds may exist for a motion to dismiss the indictment because of matters occurring before the grand jury."
"If the court orders disclosure of matters occurring before the grand jury, the disclosure shall be made in such manner, at such time, and under such conditions as the court may direct."
A fifth exception has been created this Term in an amendment to Rule 6(e), to take effect August 1, 1983. 461 U.S. 1121 (1983). The amendment adds a new subparagraph 6(e)(3)(C)(iii), permitting disclosure "when the disclosure is made by an attorney for the government to another federal grand jury." The Advisory Committee's Note points out that secrecy is not thereby compromised, since the second grand jury is equally under Rule 6's requirement of secrecy.
"'Attorney for the government' means the Attorney General, an authorized assistant of the Attorney General, a United States Attorney, [and] an authorized assistant of a United States Attorney. . . ."
See alson 12, infra.
See generally United States v. Baggot, post, p. 463 U. S. 476.
See generally 8 J. Moore, Moore's Federal Practice